Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Constitutional Law

Series

1991

Commerce Clause

Articles 1 - 2 of 2

Full-Text Articles in Law

Justice Scalia And The Commerce Clause: Reflections Of A State Tax Lawyer, Walter Hellerstein Jun 1991

Justice Scalia And The Commerce Clause: Reflections Of A State Tax Lawyer, Walter Hellerstein

Scholarly Works

This paper considers Justice Scalia's substantive views of the restraints that the commerce clause imposes on state taxation. My purpose is to examine critically Justice Scalia's dormant or "negative" commerce clause analysis of the state tax issues on which he has opined and to draw from that examination some general conclusions about Justice Scalia's commerce clause jurisprudence.


Putting The Dormancy Doctrine Out Of Its Misery, Richard D. Friedman Jan 1991

Putting The Dormancy Doctrine Out Of Its Misery, Richard D. Friedman

Articles

Justice Antonin Scalia has put on the academic table the question of whether the doctrine of the dormant commerce clause should be abandoned. That is a significant contribution, for this is an issue that should be debated thoroughly. But Justice Scalia's campaign against the doctrine has been notably ambivalent. On the one hand, he argues that the doctrine lacks justification in constitutional text, history, and theory.1 On the other hand, assertedly feeling the pressure of stare decisis,2 he has gone along with, and even led, applications of the doctrine, although within narrow limits.3 In this essay, I argue that Justice …